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Summary

The claimant had severe back pain. His claimant’s request for ‘backdating’ (ie, extending the time for claiming) UC was refused on the basis that even though he had a disability, which was one of the circumstances in which UC could be backdated, there was not the required causal connection between the disability and the fact that he did not claim earlier. On appeal, the claimant argued that his ignorance about UC and fact that English was not his first language were relevant background factors in considering that. Rejecting his appeal, the First-tier Tribunal found that although the claimant had severe back pain and was not aware of UC or how it was claimed, and did not claim until he got help from a friend, that had nothing to do with his back pain and so it was not the case that his back pain meant that he could not reasonably have claimed earlier.

In the Upper Tribunal, Judge Grey KC held that although the tribunal had erred in adopting an ‘unduly narrow’ approach and not properly applying the approach set out in a previous decision of the Upper Tribunal in this case, on the facts the claimant nevertheless had not made out that he could not reasonably have been expected to have claimed earlier, and so his appeal against the refusal of backdating was dismissed. The judge applied the rule on ‘backdating’ UC at regulation 26 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013, SI No.380, and also had reference to the earlier decision of the Upper Tribunal in this case in CU v SSWP (UC) [2024] UKUT 32 (AAC). Regulation 26 provides that for backdating to apply, one of the specified circumstances in subparagraph (3) applies to the claimant, and that ‘as a result…the claimant could not reasonably have been expected to have made the claim earlier’.

In the first Upper Tribunal decision in this case, in remitting the case back to the First-tier Tribunal Judge Jones said that there had to be a ‘causal connection’ between the circumstance (in this case, disability) and the reasonableness of not claiming UC earlier. But he had also said that that was not to say that the claimant’s ‘wider circumstances’ do not fall to be considered in the context of what could reasonably have been expected of the claimant. Ignorance of the benefit system was a wider circumstance, but the test remained overall what was reasonably to be expected. In the present decision, Judge Grey KC reiterated that there must be a connection between the circumstance and the unreasonableness of expecting the claimant to have claimed earlier. However, the tribunal appeared to have required that causal connection to have existed before the wider circumstances could be taken into account. That was ‘to set the bar too high’ and was inconsistent with Jude Jones’s first Upper Tribunal decisions (paragraph 29). 

‘Rather,’ said Judge Grey KC, ‘whether or not the necessary causal connection between (here) the disability and the failure to make a timely claim existed had to be assessed by reference to the claimant’s circumstances as a whole, including any “background” circumstances or characteristics’ (paragraph 29).

However, on the facts the judge was unable to accept that the claimant was so incapacitated by his disability to the extent that it would have been impossible for him to have made enquiries about his benefit entitlement, and it would have been reasonable to have expected him to make those enquiries. His appeal against the DWP’s refusal to back his UC was therefore dismissed.

Comment from CPAG

This decision preserves the finding in the earlier CU v SSWP (UC) [2024] UKUT 32 (AAC) that the ‘wider circumstances’, such as lack of awareness or language difficulties, are relevant to the test of whether the claimant could reasonably be expected to have claimed earlier. But as in that decision, it remains that has to be in the context of a ‘causal connection’ between the regulation 26 circumstance (eg, disability) and the reasonableness of not claiming earlier. In the present case, if it had been accepted that the claimant’s disability meant he could not take steps to remedy his lack of knowledge of UC and language problems, the outcome would have been different.

Decision in brief

Claimant received monthly payments for surrogacy expenses for two pregnancies amounting to, respectively, £15,000 (over 10 months) and £10,500 (over seven months) – once they became known to the DWP, they were correctly treated as the claimant’s income – they had to be treated either as capital or as income – on the facts and applying the good authority of Morrell v Secretary of State for Work and Pensions [2003] EWCA Civ 526 regarding the ordinary and natural meaning of the word ‘income’, the payments were correctly characterised as income – they could not be ignored as ‘reasonable expenses’ for a volunteer as (despite the wording used in the surrogacy legislation) for JSA purposes, the claimant could not be regarded as engaged in voluntary work

Comment from CPAG

This is a decision about income-based JSA and, as the judge says, 

‘it must also be remembered that the methodology for assessing income and capital is very different under the universal credit [UC] scheme to that under the arrangements for the legacy benefits such as IB-JSA.’ 

The position regarding UC is not completely clear. For UC, they would not count as earned income and are not specifically named as unearned income. But could they nevertheless count as unearned income by virtue of being taxable (and so caught by regulation 66(1)(m) of the Universal Credit Regulations 2013)? It is understood that the ‘reasonable expenses’ which the surrogacy legislation limits the payments to have not so far been regarded as taxable by HMRC. But there would seem to be no definitive answer.